Humanization of criminal-procedural legislation: a long step forward
12.12.2001
On 8 February the Supreme Rada of Ukraine adopted the Law ‘On changes to be introduced into the CPC concerning the legal grounds, procedure and terms of keeping in captivity of persons suspected or accused of committing crimes’. The Law was developed by V. V. Onopenko and confirmed by 328 votes of people’s deputies.
The essence of the changes is briefly as follows.
During 24 hours after the moment of the detainment the police authorities must hand to a court a motivated document on the application of the preventive measures to the person suspected or accused of committing the crime. The court has the duty, during 72 hours after the moment of the detainment, to take a motivated decision on the preventive measures; the consideration of the case must be carried out in the presence of the prosecutor or investigation officer, the suspected and his advocate. According to the new Law, an arrest is an exceptional measure. If, according to the operating CPC, the arrest is done, if there are sufficient grounds that, being at large, the suspect can escape from the investigation and court or prevent to find the truth in the case, then, according to the newly adopted law, the sufficient proofs must be gathered for the arrest that, being at large, the suspect can escape from the investigation and court or prevent to find the truth in the case. The suspect is freed from the arrest, if he agrees to fulfil the needed conditions required by other preventive measures. This norm may not be to persons, who had committed a grave crime, as well as to persons, who are suspected or accused of committing a grave crime or of committing a crime together with an organized criminal group.
The terms of captivity were also changed. Two months are granted for an investigation, if this term appeared insufficient for resolving the case, and there are no reasons to change the preventive measure, then the term may be prolonged by the judge, who before had chosen the arrest as a preventive measure, for other two months. This is permitted only concerning crimes, which may be punished by not less than 3 years of incarceration. The prolongation of the investigation up to the total term of 6 months may be granted by an oblast prosecutor or his deputies in the cases of extremely difficult and grave crimes. The prolongation of the investigation up to the total term of 9 months may be granted by the General Prosecutor or his deputies in the cases of extremely difficult and grave crimes. Thus, the maximum term of preliminary incarceration is halved.
The Law permits to direct cases to the court not entirely, but only by parts, which are considered to be proved. Here lies a great danger: the court has the right to direct a case for an additional investigation and do it many times. As a result, a court may consider the same parts of a case for many times, while the suspect stays in a preliminary prison. Unfortunately, the Law does not limit the total term for staying in captivity under investigation and trial.
The essence of the changes is briefly as follows.
During 24 hours after the moment of the detainment the police authorities must hand to a court a motivated document on the application of the preventive measures to the person suspected or accused of committing the crime. The court has the duty, during 72 hours after the moment of the detainment, to take a motivated decision on the preventive measures; the consideration of the case must be carried out in the presence of the prosecutor or investigation officer, the suspected and his advocate. According to the new Law, an arrest is an exceptional measure. If, according to the operating CPC, the arrest is done, if there are sufficient grounds that, being at large, the suspect can escape from the investigation and court or prevent to find the truth in the case, then, according to the newly adopted law, the sufficient proofs must be gathered for the arrest that, being at large, the suspect can escape from the investigation and court or prevent to find the truth in the case. The suspect is freed from the arrest, if he agrees to fulfil the needed conditions required by other preventive measures. This norm may not be to persons, who had committed a grave crime, as well as to persons, who are suspected or accused of committing a grave crime or of committing a crime together with an organized criminal group.
The terms of captivity were also changed. Two months are granted for an investigation, if this term appeared insufficient for resolving the case, and there are no reasons to change the preventive measure, then the term may be prolonged by the judge, who before had chosen the arrest as a preventive measure, for other two months. This is permitted only concerning crimes, which may be punished by not less than 3 years of incarceration. The prolongation of the investigation up to the total term of 6 months may be granted by an oblast prosecutor or his deputies in the cases of extremely difficult and grave crimes. The prolongation of the investigation up to the total term of 9 months may be granted by the General Prosecutor or his deputies in the cases of extremely difficult and grave crimes. Thus, the maximum term of preliminary incarceration is halved.
The Law permits to direct cases to the court not entirely, but only by parts, which are considered to be proved. Here lies a great danger: the court has the right to direct a case for an additional investigation and do it many times. As a result, a court may consider the same parts of a case for many times, while the suspect stays in a preliminary prison. Unfortunately, the Law does not limit the total term for staying in captivity under investigation and trial.